CPSIA - Perhaps Mark Pryor is Detrimental to the American Public

I have resolved to "out" the politicians who stand between federal law and rationality when it comes to the CPSIA. We endured two years of torture at the hands of Henry Waxman in the House, who spent 18 months denying that anything was wrong with the CPSIA - and then tried to put through an amendment to his liking in the dead of night. I exposed that deceptive effort, but it didn't change much in Mr. Waxman's approach.

Now, post-2010 midterm elections, the winds have shifted and there is much more recognition that the CPSIA is deeply flawed. The House is controlled by Republicans who have long recognized and admitted that the law needed to be changed in important ways to save jobs (without sacrificing "safety"). Unfortunately, certain members of the Senate remains wedded to the Waxman script and seem committed to fall on the sword to protect each precious word of that defective and fundamentally flawed law. As they rise up to stand in the way of progress and rationality, I commit to YOU that I will out them in this space.

One person who is already raising his profile to protect this law is Senator Mark Pryor of Arkansas. I am told he has a copy of the signed CPSIA framed in his office (I haven't seen it personally, I admit) so presumably he is very proud of "his" law. It's a shame he hasn't been listening since he cast his vote in 2008. In today's USAToday, Mr. Pryor opines that de-funding the CPSIA database would be "detrimental to the American public".

Why does Mr. Pryor think this? "Private consumer complaint websites tend to focus more on performance issues, which is why 'one central place where consumers can go to find accurate information' about safety is needed, says Sen. Mark Pryor, D-Ark., who is pushing to keep the funding in place for the database." [Emphasis added]

Perhaps a place with accurate information about consumer product incidents is "needed" but is the CPSIA database such a thing? Why, precisely, does Mr. Pryor thinks the database information will be "accurate"? After all, we know that Inez Tenenbaum admitted in Congressional testimony that the agency will likely post inaccurate or misleading information. Remember, "that's what the rub is". We also know that the General Counsel of the CPSC says that the database will not be trustworthy, featuring "complaints" without shedding light on "causation". Remember, the General Counsel touts the disclaimers all over the website, which she is considering AMPLIFYING. In other words, she admits/acknowledges/trumpets that the information may not be true and can't be relied upon. In other words, it's not accurate.

Senator Pryor, are you listening?

I am sure the answer is "no". Expect more of this from Mr. Pryor. According to Wikipedia, he is quoted in the movie "Religulous" saying "You don't need to pass an IQ test to be in the senate".

No argument here.

CPSIA - Am I a Tea Partier?

I have heard the comment that I am too harsh on the Democrats and risk marginalizing myself as some sort of Right Wing Nutjob, a Tea Party extremist.

Is this a fair criticism?

My POV is that this criticism fails to take into account my experiences in this business tragedy and does not consider that my views and my anger did not come from the sky - they were built, block by block, by Congressional Democrats and by the leadership at the CPSC.

I won't defend my being perpetually angry at the agency or Congress for their defiant stance of indifference. [Some Dems cloak their indifference in words of sympathy, never matched by actions consistent with their purported tears. I follow actions, not words, and prefer to ignore insincere blubberings unless something concrete is offered. It never is.] I have been working on this project for three years now, and actively working to get the CPSIA fixed for almost two years. That's a punishing death march, guys, particularly since almost everything I have written or pushed for has been disregarded or completely ignored. It seems improbable that I have been wrong about everything without exception for two long years - even a blind squirrel finds the occasional acorn. Hence the anger and the mounting frustration.

Of course, there are other sources of anger and frustration. The process of implementing this flawed law by the CPSC has destroyed so much good in the process. What we have left is much less protective of public health or well-being. The constant media pandering and the relentless positioning of businesses and business people as evil societal elements that must be controlled is, frankly, embittering. Under the pressure of this relentless drumbeat, it is hard to not feel unprotected and in great danger. We have no defenders and are on notice that we are prime suspects.

No defense, but please someone, tell me, what am I supposed to do now? Grin and bear it? Give in and pretend everything's okay? If you think either option is realistic, you really don't understand my situation or my motivation. These aren't realistic options. I am fighting off doomsday - grin-and-bear-it doesn't work when the Grim Reaper is coming your way. And there are no days off.

So if I can't go along to get along and if the CPSC and Congress have proven beyond a shadow of a doubt that they have made up their mind and have no interest in me or my problems, what options are left to me? The process of advocacy that I have been practicing and that I have been financing hasn't produced enough results - we are still in the soup. If I can't give up and if what I am doing just doesn't work - logic suggests I need to do something else.

So what I have been doing is telling the truth - it's the Dems who have done all this and it's the Dems who refuse to fix it. It's the Dems who won't listen and it's the Dems that refuse to acknowledge their errors. If everyone in Congress voted to save their job by supporting passage of the CPSIA in August 2008 rather than face reelection attack ads, that was then and this is now. The Dem leadership has chosen to ignore the OBVIOUS and continue to deny that anything can or should be done in this matter. There's nothing wrong or politically-incorrect about speaking the truth - and that's the truth. We are where we are because of the Dems. They own it.

If the politicians who are busily engaged in snuffing out our business enterprises won't listen and cannot be influenced, then what's left to me? I must enter the political arena to specifically target them for removal. And that's what I am doing. It's only fair - they act like they want my business dead. So we need to put different people in their place. And we need to do it right away.

If this makes me a Tea Partier or a Right Wing nutjob, so be it. My head is not bowed. My customers, my suppliers and my working associates and partners know where I stand. I am fighting for our business life and will not rest until the people responsible for this mess are brought to justice.

CPSIA - A Page Torn from the CPSIA Playbook

The Dems’ Central Command tore a page from Waxman’s CPSIA playbook and, according to the New York Times, is apparently advising Democratic candidates running for Congress to avoid town hall meetings. All the better to avoid feeling the wrath of their constituents, you know, the people they represent. The NYT article reveals the strategy:

“The reception that Representative Frank Kratovil Jr., a Democrat, received here one night last week as he faced a small group of constituents was far more pleasant than his encounters during a Congressional recess last summer. Then, he was hanged in effigy by protesters. This time, a round of applause was followed by a glass of chilled wine, a plate of crackers and crudités as he mingled with an invitation-only audience at the Point Breeze Credit Union . . . . The sentiment that fueled the rage during those Congressional forums is still alive in the electorate. But the opportunities for voters to openly express their displeasure, or angrily vent as video cameras roll, have been harder to come by in this election year. If the time-honored tradition of the political meeting is not quite dead, it seems to be teetering closer to extinction. Of the 255 Democrats who make up the majority in the House, only a handful held town-hall-style forums as legislators spent last week at home in their districts. It was no scheduling accident.”

Here’s the Dems’ genius strategy in a nutshell: last year - hung in effigy; this year – invitation-only, closed door “feedback” sessions. Problem solved!

This master stroke allows the Dems to stage manage a myth, perpetuating the illusion that everything is A-Okay. Of course, this brings to mind Henry Waxman’s refusal to hold CPSIA hearings for almost two years and his staff’s perpetual rebuffing of any criticism of the “perfect” CPSIA. See no evil, hear no evil – therefore there must not be any evil . . . right?

The big question is who will be fooled by the Dems “hiding in plain sight” strategy. Does anyone actually believe that avoiding the people will keep the Dems in control of Congress?

It’s hard not to feel that the Dems think they are ruling us, not governing as our representatives, and aren’t accountable for their actions. It seems the height of arrogance to not stand before constituents and talk about the issues of the day. Perhaps they think we are too dim to remember what we are pissed off about.

Just like the CPSIA. Does anyone remember why we are mad about this law??? Someone needs to remind me . . . .

So the Dems are going to avoid you and your problems. This kind of treatment makes voter anger turn into voter rage. Let’s keep this in mind as we head to the polls. When the Dems are out of office, they can see how they like being ignored.

CPSIA - Eroding Trust in Our Leaders

The CPSIA spectacle over the past two years of Democratic leadership in Congress has been a sign of the times, something that revealed basic problems with these new stewards of our futures. Not only have the Democrats alone stood up against altering the CPSIA, the source of well-documented misery and phantom benefits, but they have ruled with an iron fist in an attempt to suffocate opposition. Please note that for two years, Congress under the leadership of Californians Henry Waxman and Nancy Pelosi has successfully resisted having a hearing about this law with stakeholder witnesses who could shed light on the problems (rather than the joke of hearing last Fall featuring one witness, a newly-appointed Party-loyalist Chairman of the CPSC). The message control and forum management has been revolting. Despite the fact that these folks work for us, there seems to be NOTHING we can do about this sham process.

Readers of this blog are well-aware of the mounting ANGER over this astounding indifference to the facts of the awful CPSIA and to our suffering. The latest low point engineered by Democrats is the Commission's failure to approve public discussion of the recommended changes to the CPSIA, a report due next Friday. This is no small issue - read my post from yesterday for a summary of legal changes necessary to restore sanity to safety administration in children's products - yet the Dems apparently feel discussion of these issues in front of you might somehow limit their discretion. Huh? It is very tempting to believe that handlers from Congress (Guess Who) have given strict instructions to the Dem Commissioners that there will be NO public debate of these issues. And there won't.

These blows to our faith in government raise serious questions of character. Leadership is accountable to the American public. A failure to operate openly and with an open mind is intolerable. People will not forget.

I understand that bipartisan meetings between Congressional staffers and the CPSC have been cancelled or postponed until the report is issued. Furthermore, I believe that Mr. Waxman is already circulating new language for his amendment redux quietly, sans hearing or public discussion. Connect the dots - the Democrats have decided what the report will say (they have the votes to ram it through), it has been pre-approved by Guess Who (which means it will not fix the CPSIA because the Dems on the Hill don't care about our little problems) and a public discussion between Commissioners is pointless. As the self-appointed Prince of "Darkness", Bob Adler, put it, "I think the positions at this point are pretty firmly set." Right - set by Guess Who. Discussion in public will only embarrass the Dems on the Commission - they are only allowed to read from the script and will be unable to defend loopy positions without looking loopy themselves.

If all of this has not fully eroded trust in these folks, let's not forget that we are not living in a vacuum. The behavior of the Dems on other issues is part of the milieu. These same "leaders" are making other messes for us to regard, such as Harry Reid's "apology" for incredibly racist remarks about Obama's skin color and "dialect". OMG, can you believe the shamelessness? The Dems made everything nicey-nice by Obama and Al Sharpton forgiving Reid's "poor choice of words". Please, you can't say something like that without thinking it, and if you think it, you are a bigot. Plain and simple. No apology will cover up this disgusting fact. ANY person in a minority will tell you that prejudice is deeply rooted, and no apology will rid the system of that poison. Reid's apology rings rather hollow to me. And he's the voice of the Dems in the Senate.

And then there's health care. To protect you, Mr. Obama and the jackals crying out for health care reform have insisted on taxing "Cadillac" health care plans. This sounds "bad", right - like someone's getting something they don't deserve, all at your expense. More benefits for "fat cats", right? A great sound bite for the saviors to make their case . . . .

That's what Obama and the other Democratic do-gooders are all about, making things fair for "regular" Americans, isn't it? Well, Fortune Magazine has a different slant on this critical term in the Obamacare plan - namely, that the tax on so-called "Cadillac" plans will mainly punish the elderly. Why? Well, here's a shocker, more expensive health care is generally health care delivered to sicker populations, like older Americans. Here's an example of a plan that crosses the Cadillac boundary: "Now to Medicare -- no Cadillac plan -- which will spend about $510 billion this year to cover fewer than 46 million people. That's more than $11,000 a person, well over the Cadillac threshold of $9,850 for single retirees 55 and up. And that's without counting Medigap coverage (for which I have no numbers), which would send the average higher." Right - Medicare, the health plan for older Americans. While the health care proposals do not tax Medicare, the math makes it clear that care for older populations costs more and may well be subject to the new tax.

I am sick of the misleading messaging, the manipulation, the indifference, the obstruction of this crop of Democrats. I have no idea if the CPSC Democratic leadership will rise to the occasion and do the right thing or whether the House and Senator Democrats will wake up to the terrible mess they made and take the appropriate steps to fix it or whether (as seems likely) the fix is in and we are cooked, but this much I DO know - I am sick of this treatment. I cannot support this kind of leadership and cannot abide by it.

The Democrats have made this mess entirely themselves. No one forced them to be so deaf and so indifferent. No one required their arrogance, high-handedness or insensitivity to the misery that they caused. When November 2 comes around and the American people exact their revenge, the party leadership will have no one to blame but themselves.

I look forward to that day.

CPSIA - Consumer Groups are Grasping at Straws

Last week, in their usual pre-Xmas slanderfest, the full range of consumer groups unleashed their annual list of bad and dangerous toy lists on a pandering media. The pickin's were slim this year, but that didn't stop them.

I have heard from friends outside the toy industry who expressed horror and disbelief at these widely-publicized attacks. Toy industry insiders are used to it, frankly. Actually, speaking candidly, some of these annual efforts are useful and appreciated. I think that bad products (generally reflecting poor judgment, nothing more venal than that) have been usefully exposed by these groups in the past. However, of late the consumer groups have been obsessed by "toxics" - pushing the notion that toys are poisonous, rather than simply irresponsibly-designed. I think the reason is simple - the media and reactive politicians respond to this accusation, so why give up a "good thing"? You have to wonder if their goal is to simply make toys safer. Their attacks are remain more vicious than in the past and much more pointed.

The consumer group continue to package the idea that consumers do not realize that "no government agency tests toys before they are put on the shelves." This self-declared "fact" is an essential justification of their "precautionary principle" - that is, we need an activist government approving everything before you get your hands on it. President Obama's assertion on Late Night with David Letterman that we need a lot more government these days is right in line with the precautionary principle. Others call this movement the Nanny State.

The precautionary principle holds that no risk is too small to address - in advance. Thus, the neurosis underlying the assertion that Americans think the government must be "testing" toys before they are sold is the same as Consumer Union's David Pittle's admission in the TSCP hearing (beginning at about 90 minutes in the video) that he is "nervous" when he buys a toy (not sure what or whom to trust), and ergo, his rules for how manufacturers run their businesses must be imposed. Mr. Pittle's demands seem designed to relieve his anxieties, rather than improve safety. [He might contend that it is one and the same but I disagree.] Inciting terror through various means, the consumer groups place a real emphasis on how consumers FEEL and whether products and their manufacturers have earned consumer confidence (an emotional standard), not whether (objectively or actually), the products are actually safe.

Perhaps your mother told you once that it is hard to control how others feel - you can only control what you do and how you do it. Maybe she should be running Congress . . . .

In any event, the number of offending children's products uncovered this year by the consumer groups is rather meagre. As previously noted, Center for Environmental Health (CEH) drummed up seven items after six weeks of testing on 250 items. The CEH rogue's gallery featured NO soluble lead in toys, but did feature one pair of shoes with lead in the soles . . . a pair of sandals with lead in the insole . . . a trinket with a bad connector link . . . a poncho with lead in the vinyl material, etc. And now the PIRGs have joined in the fun. The annual Trouble in Toyland report was issued this week by national PIRG and the equally hyperbolic Illinois PIRG issued its own "Chemical Compliance: Testing for Toxics in Children’s Products" report. [I am only focusing on lead and phthalates in these reports.] The PIRG "bounty": a zipper "pull" and a yellow cow with lead-in-paint, one piece of lead jewelry, and two toys with phthalates (one an "unidentified" phthalate that might not be illegal, and the other just slightly over the limit). Illinois PIRG found only a small handful of violative products: only six of 87 products tested positive for violative lead levels using XRF guns, winnowing down to three items when tested by an independent lab.

Illinois PIRG failed to find lead or phthalates in the items featured in this TV segment. Unfortunately, that makes bad TV, so the head of Illinois PIRG lowered the standard to create something new to worry about (watch from 1:00 for 30 seconds in the video): "Most of the toys PIRG bought at target came up clean. But three of the toys had small amounts of lead -- MUCH LESS THAN the current safety standard but enough for the gun to detect. 'Really, children shouldn't be exposed to lead at all,' said [Brian] Imus." [Emphasis added]

An implication of the 2009 reports is that the onerous new CPSIA lead standards are simply not tough enough. For instance, PIRG says "Regulations should simply ban lead except at trace amounts (90-100 ppm), whether in paint, coatings or any toys, jewelry or other products for use by children under 12 years old." Where did this come from? Some ideas:

• They are laying the groundwork for the August 2011 determination by the CPSC about implementing a 100 ppm lead limit. To do so, the agency must conclude that it is "technologically feasible" as defined in the CPSIA.
• The groups are desperate to make their work seem relevant and constructive.
• They are confused or want to confuse consumers about HOW lead harms children, ignoring, covering up or blurring important distinctions between bio-available lead and inaccessible lead.

The latter point is so critical to understand. Lead can only harm a child if it gets into the bloodstream. Notably, lead is present throughout the environment (lead is found in at least 40 ppm concentrations in dirt, unless you are referring to the Obama's vegetable garden which has lead in concentrations of 93 ppm). Lead is in our food, drink and air, so kids consume it all the time. Apparently, lead in certain amounts must not be a problem, or else we would all have suffered reduced IQs (no comment in my case). The lead that should concern us is soluble lead, as in lead-in-paint and in jewelry, because it can easily get into the bloodstream. In any event, PIRG knows that toys and children's products aren't the problem. In their report, they cite a 2005 article (“Lead Exposure in Children: Prevention, Detection and Management,” Pediatrics, 1036-1048 (October 2005)) which makes clear that the problem with childhood blood lead levels is in lead-in-paint used in housing. There is NO mention anywhere that I can find where academic studies blame national blood lead levels on toys, etc., and likewise, I find all credit for lowering blood lead levels is given to efforts to rid the world of lead-in-paint in housing. Period.

So why does PIRG and its brethren continue to flog the notion that lead in all manifestations is dangerous? And why are they now saying that ANY lead, even below the draconian levels in the current law, is dangerous to children's health?

Questions worth pondering.

Finally, not content to blur the lines on lead, PIRG also recommends that the phthalates ban be extended: "CPSC should ban phthalates in toys and other products intended for children under five and work with the Federal Trade Commission to ensure that toys labeled 'phthalate-free' do not contain phthalates." So apparently PIRG wants ALL phthalates eliminated from toys, no matter the absence of science behind their new manic fear. Even more importantly, they apparently concede that the blanket ban on six phthalates for toys intended for children 6-12 is excessive and damaging. At least that's a positive contribution!

So another Xmas toy bashing seems to be behind us. The pseudo-science underlying the consumer groups' attacks on children's products was again exposed, as was the basic integrity and safety of the marketplace. Does that do us any good? That remains to be seen. Perhaps the leadership at the CPSC will tire of this relentless war (which is eroding their professional reputations) and do something to get Congress to fix a truly defective and damaging law. Let's hope so.

CPSIA - Further Developments in Brass Bushings Case

There have been a couple further developments in this case:

a. Both Anne Northup and Nancy Nord put out press releases today lambasting the Learning Curve decision. The (apparent) polarization of the debate has now gone very public. The shame of it is that the Republicans seem to be the ones advocating for common sense while the Democrats continue to support decisions that would puzzle the man on the street. There is no reason that common sense should divide the Commission. Of course, it would be wrong to accuse the Democratic appointees of lacking common sense. Still, it's hard to argue with the position of the Republicans from the perspective of real world problems and risks. At least they are speaking out against Congressionally-sponsored folly compelling the agency to hold hearings about how many angels can dance on the head of a pin.

b. Commissioner Bob Adler called me today to retract his accusation discussed at the end of my last blogpost in a short section entitled "Interesting Side bar". Mr. Adler was contacted by representatives of Learning Curve who were upset at the idea that they had been selling toy cars in violation of the ban. It turns out that this is not true. When Mr. Adler became of his mistake, he (decently) sought to correct the record immediately. For that, he is to be commended. I want to make clear - the testimony at the LCI hearing that I reported actually took place BUT the substance of Mr. Adler's remarks was incorrect. Mr. Adler expressed his regret to me, and asked that I pass it along to you.

You have to admit that this is rather ironic. Mr. Adler accused Learning Curve of exhibiting "bad optics". Bad optics, indeed. The source of his misinformation was a staffer to one of the Commissioners who bought a LCI car from Amazon.com and assumed that this meant that LCI was violating the ban. This staffer took it upon himself/herself to pass on this assumption as a FACT to Mr. Adler. Actually, the inventory for sale on Amazon had been bouncing around for some time, and did not come from LCI after the ban went into effect.

To me, this mistake (and that's all it was) demonstrates several important points:

• The CPSC has a VERY HARD TIME understanding supply chains. There may be a tendency among some people working at the CPSC to see the economy as a very simple, linear beast. It's not. This situation illustrates the danger is making assumptions about how the economy is organized or underestimating the complexity of how goods go to market. Let's not forget the immortal words of Felix Unger in The Odd Couple TV Show: "When you assume you make an ass out of u - you - and me."
• To a business person (like me), it feels so often that the CPSC holds businesses guilty until proven innocent. Mr. Adler made a mistake, and that's to be expected of all of us mortals, BUT it feels too easy for the CPSC to judge us without digging too deeply into the merits. Maybe the business community isn't a nest of vipers. Just a thought. . . .
• The Commission has a tremendous ability to do harm. This (minor) incident will certainly not enhance LCI in any way. The Commission treads with elephant feet - it needs to try to be a ballet dancer.
• The problem of "bad optics" is resident at the CPSC today. The issue of tone and appearance and how they affect market participants - that is VERY deserving of consideration at the CPSC TODAY.

I hope this incident is reviewed carefully at the CPSC for "lessons learned". Mr. Adler's culpability here is not, IMHO, the issue. The bigger concern is the hair trigger, the guilty-until-proven-innocent atmosphere, the power to do harm, the effect of words and actions and inactions on behavior in the market. The Commission needs to pause for a moment and use this incident to do some soul searching. If that exercise is productive, we will all be grateful that this mistake took place.

CPSIA - Does the CPSC Have a Clear Mission These Days?

In my recent post on the CPSC's latest lead compliance guidance, I observed that the agency differentiates regulation of known childhood hazards by the "intent" of the product's maker, irrespective of the physical effect of the hazard on children. This rather shocking development derives from the awful CPSIA, where the marketing intent of a product is used to determine if the product is inside or outside the new restrictions. Safety be damned?

For this reason, a ballpoint pen (a "pen") is okay, unregulated and untested as to lead if it is not "primarily" intended for children. If a pen is "primarily" intended for children, it needs to be proven lead-free (within the new standards, okay). Notably, all children use pens. Thus, we can safely assume there are two kinds of pens used by children: (a) those primarily intended for children (the smaller set of pens) and (b) those NOT primarily intended for children (the larger set of pens). The CPSC is only interested in testing and regulating the smaller set, the ones primarily intended for children - this in spite of the fact that the agency knows that the unregulated larger set is used universally and in high numbers by children. In theory, the pens in both sets could be identical - and it wouldn't matter. Conclusion: the "new" CPSC is all about enforcement (which pens are regulated and which are not?) and NOT about safety (which pens are actually safe and which are not?). This is truly sad - for American consumers (including me and my family).

How did this happen?

The law pushed us here, and the new leadership at the CPSC, led by Inez Tenenbaum, was only too enthusiastic to take us along for the ride. The new CPSC outlook appears to be that the CPSIA defines safety and ergo, vigorous enforcement of the law makes everyone "safer". If the law proscribes a product, a feature or a use, it is unsafe, and barring compelling evidence to the contrary, if the law doesn't proscribe the product, feature or use, it's safe. That's it. Turning back to the astounding pen decision, the rationality of the CPSC's position is therefore dependent on the CPSC having NO information suggesting that pens present a danger to children from lead. This makes it possible for them to say that it's fine to sell unregulated pens to kids. Of course, it also means that they are knowingly outlawing something that they KNOW is safe (pens primarily intended for children). They just don't want to admit it.

Ah, that's the rub, isn't it? They won't admit that their mission has been terribly distorted by this law. They want to pretend that, in fact, they are still the champions of safety. [Ed. Note: In many ways, the CPSC remains a great champion of safety. The implementation of the CPSIA is NOT one of those ways.] How far will they go to assert moral high ground as the CPSIA police rather than as an agency with a safety mission first and foremost?

Earlier today, the Grand Haven Tribune posted (yet another) article about the ill-effects of the CPSIA. This time the article focused on the dilemma faced by small cottage industries and handcrafters under the new safety law. Consider the quotes from the CPSC spokesperson in light of our discussion:

"'This law is intended to make products safer for children because there are too many incidents where children have ingested too much lead,' said Kathleen Reilly, public affairs specialist for the U.S. Consumer Product Safety Commission. 'There are many, many products that contain lead. So this takes a look at preventing that.' With the product safety act, the commission plans to significantly reduce the total lead content in products from 600 parts per million to 100 ppm by August 2011. Products now must not contain more than 300 ppm, according to the act. 'We're not trying to put people out of business,' Reilly said. 'But there has to be safer standards for children's products. . . . We're not out to get anyone. . . . We're just following the law to make sure people at home who make children's products make safe products. How do you know whether or not it's safe if it's never been tested?'"

So, the CPSC says that the standards are needed to stop "too many incidents" where children have ingested "too much lead". From toys, hairbows and clothing - or from lead paint on the walls of their homes or by ingesting lead in dirt? The new CPSC shockingly does not distinguish among these sources of lead - it just reads the law, enforces it . . . AND then justifies it. The assertion that we have a widespread lead poisoning problem from children's products is the justification, however fantastic and faulty. I would like to point out that the notorious lead-in-paint recalls of 2007/8 resulted in ONE reported injury and ZERO deaths over 25 months. Hmmm.

The agency continues its justifications with the implication the agency believes and believed that "safer standards" were necessary. Is it true that the CPSC went to Congress to ASK for these new standards? Did they testify in favor of the tighter standards, saying that they were necessary to stop a public health crisis? Did the CPSC Staff rise up and demand that standards be tightened? The answers are no, no and no. However, Ms. Reilly's remark makes a good sound bite and it makes the agency's enforcement policy sound appropriate and necessary.

The worst of this string of justifications is her assertion "How do you know whether or not [a toy is] safe if it's never been tested?" Where did Ms. Reilly come up with this one? I was not aware that the CPSC actually believed the old chestnut that it is appropriate to assume the worst about products unless manufacturers preemptively test. Say, this sounds faintly familiar . . . yes, it's coming back to me . . . . Anyone remember this quote: "Businesses’ assertion that they’re having to test products they know are safe is absurd. You only know if a product is safe if it’s been tested." [Emphasis added] The author: Rachel Weintraub, director of product safety for the Consumers Federation of America in the Wall Street Journal on September 10. In other words, the CPSC has adopted the consumer groups' rationalization for the CPSIA to justify their emphasis of enforcement over safety.

Ironically, the coherence of the CPSC's new message is destroyed by the fact that items outside the regulation (such as pens not intended for children) won't be tested but may be used widely by children. Are they still "safe"? Go on, CPSC, chase your tail!

The mission at the CPSC used to be safety. A product, component, material or use was evaluated for risk, and it was regulated only if it presented a harm. Now Congress has fobbed off a dangerous defective law on the CPSC, installed an enforcement-first Chairman, who in turn ramped up the agency's PR machine to make the new police force look like a safety patrol. In fact, the new leadership seems obsessed with enforcement and rarely asks about actual safety when discussing products affected by the CPSIA. When thinking about brass or about pens, does the subject even come up? Do I need to remind you of the rhinestones fiasco? The agency solves this problem with its "public affairs specialists", employed to lull the public into submission with the tranquilizer that we always needed this excessive regulation. . . . That makes it all okay!

I am disappointed in myself that I am even somewhat surprised by all this. After all, history is written by the victors and in this case, the Democrats put their people in charge and told them what to do. The retelling of the safety story has begun, and in the process the 37-year mission of the agency is being obliterated before our very eyes. Ironically, I feel strongly that this will end in Americans being less safe, not more.

CPSIA - My Answer to Sean Oberle on Resale Shops and Tenenbaum

Some of you may have been following the recent debate in the Product Safety Letter (PSL) on the CPSC's noxious Resale Roundup program. A wave of unfavorable media coverage has dogged the new CPSC initiative, noting the risk of high fines and the unwelcome intrusion of federal regulators into an innocent American ritual, the garage sale. A highly-publicized Fox News piece apparently triggered a response by CPSC Chairman Inez Tenenbaum in PSL on October 3 entitled "Garage Sales and CPSC -- Sorting the Facts from the Myths". In this piece, Ms. Tenenbaum promised not to fine garage sale operators, and chose to emphasize the CPSC's noble goal of ending the resale of recalled products.

Next, Rob Wilson of Challenge and Fun, Inc., a Massachusetts-based toy company, published an Op-Ed in PSL on October 9 entitled "Consumer Confusion Comes From CPSC Guidance, Not the Media" in which he noted that the fear Ms. Tenenbaum sought to calm came not from media reports but instead from CPSC policy. In particular, he pointed out the impractical and confusing advice given in the CPSC's own CPSC Handbook for Resale Stores and Product Resellers. Mr. Wilson closed with the following observation: "Chairman Tenenbaum vowed at her Senate confirmation hearing to bring a common sense approach to CPSIA implementation. We are still waiting for signs of common sense from the agency regarding CPSIA." Ah, that "common sense" thing again!

Sean Oberle, owner, publisher and editor of PSL, replied to Mr. Wilson in his own publication on October 13 in an editorial entitled "Clarity and Accuracy -- CPSC, the Media and Garage Sales" in which he defended Ms. Tenenbaum on the grounds that her limited statement did not constitute a comprehensive summary of her feelings or actions on the CPSIA. It's a remarkable piece, I hope you will read it. [In his editorial, Mr. Oberle makes the following observation: "a quick search of the blogosphere and other new-media sites finds more pieces running the gamut from mild warnings to doomsday predictions" - hmmm.] Interestingly, Mr. Oberle stresses his "neutrality" and "defense of accuracy and clarity" THREE TIMES. Draw your own conclusions.

Well, I sent Mr. Oberle MY Op-Ed reply to the debate he not only published but contributed to. Suffice it to say, he turned me down. I am publishing the Op-Ed here for your review and consideration. I would be interested in your thoughts.

I think it is critical to reflect on this rebuff and to delve into its deeper meaning. [My ego can take it, btw.] The Product Safety Letter (along with BNA) was cited by John "Gib" Mullan (Assistant Executive Director, Office of Compliance and Field Operations, CPSC) as the definitive source for information on safety issues at last February's ICPHSO meeting. An august publication, apparently. Yet, what does a stilted debate in PSL's pages signify? Only Mr. Oberle can say for sure. My article asks Ms. Tenenbaum to be accountable for the actions of the CPSC in implementing the defective CPSIA. Mr. Oberle has already publicly stated his neutrality on agency issues several times. [Quoting from Hamlet, "The lady doth protest too much, methinks."] What's going on here?

The American way of life is frankly dependent on our Constitutionally-guaranteed freedom of speech. The foundation of the visionary American system of a free media is its INDEPENDENCE. What if the media organs we depend on lose their independence? What if fear of retribution or a possible chilling in access to information challenges editorial decisions? In thinking about the end of the debate about the CPSC's Resale Roundup in PSL, these questions resonate. I hope this is not the Obama Revolution we have all been hearing about.

My Op-Ed for your reading pleasure:

Tenenbaum Silence on CPSIA Speaks Volumes

Sean Oberle notes that CPSC Chairman Inez Tenenbaum in her recent PSL article “Garage Sales and CPSC -- Sorting the Facts from the Myths," chose to rebut sensational media reports on the CPSC’s new Resale Roundup initiative with reassurances about the limited purpose of the program and not to address other CPSIA issues. Mr. Oberle contends that it is unfair to characterize Ms. Tenenbaum’s response to Fox News as an indication of her indifference to those other dilemmas. Perhaps that may be true, but isn’t Ms. Tenenbaum’s silence on the messy aspects of the CPSIA also a serious issue worthy of note? That is precisely the problem today – a lack of accountability for CPSC inaction on the myriad issues under the CPSIA.

It is important to recognize that the controversy over Resale Roundup was created in part by the CPSC itself. The Fox News article quotes Ms. Tenenbaum: "Those who resell recalled children's products are not only breaking the law, they are putting children's lives at risk. Resale stores should make safety their business and check for recalled products and hazards to children." In an August 20 article, McClatchy Washington Bureau writes: "Scott Wolfson, a spokesman for the agency, said it wouldn't be dispatching bureaucratic storm troopers into private homes to see whether people were selling recalled products from their garages, yards or churches. ‘We’re not looking to come across as being heavy-handed,' he said. 'We want to make sure that everybody knows what the rules of engagement are to help spur greater compliance, so that enforcement becomes less of an issue. But we're still going to enforce.'"

This is scary stuff. It is hard to take comfort in the CPSC Chairman’s soothing words in light of such tough talk. After all, didn’t NY Attorney General Eliot Spitzer secretly inspect resale shops in 2003 and then release names and addresses to the media? Interestingly, Spitzer was joined by some of the same consumer advocates who are behind the CPSIA. The CPSC has the same power to embarrass.

Even having reassured the public about the penalty policy in its Resale Roundup initiative, Ms. Tenenbaum fails to account for the negative consequences of her vigorous publicity campaign. As the Kalamazoo Gazette noted on September 30, “The [West Michigan] Salvation Army does not have thousands of dollars to spend on lead-testing equipment, so anything that looks suspicious — plastic toys, painted toys, toys with magnets or small parts, toys made in China — is pitched, said Robert Pierce, director of operations for the Salvation Army stores. Only about 20 percent of donations to the Salvation Army — compared to about one-third before the law — make it onto the store floor.” The CPSC’s tough talk on enforcement is having a chilling effect on the business community – and that cost must be weighed when regulators get “tough”. These terrible costs cannot be justified by the Resale Roundup’s meager accomplishments.

By emphasizing strict compliance and enforcement, the CPSC strikes a tone designed to appeal to those behind the new law. But in taking this position, the Chairman undermines her other messages of openness and partnership. In her speech of August 1 at the APEC Conference in Singapore, Ms. Tenenbaum stated: “My regulatory philosophy embraces open dialogue, information sharing with all stakeholders, and a commitment to finding mutual interests.” In her June 16 confirmation hearing testimony, Ms. Tenenbaum wrote: “While emphasizing the life-saving mission of the Commission, I will also ensure that industry knows that their views will be heard and considered.” Ms. Tenenbaum’s strident tone of firm enforcement erodes the trust she apparently sought to build with the business community in the early days of her administration.

Ms. Tenenbaum’s recasting of the Resale Roundup should not be judged in a vacuum. First, the CPSC seems to be embracing a strict liability enforcement policy on the strictures of the CPSIA. Just last week, the CPSC announced a recall of 40 inflatable toy baseball bats for violation of the controversial phthalates ban. You can hold 40 uninflated bats in one hand. Earlier, Target was fined $600,000 for lead-in-paint violations that occurred three years ago despite the fact that it had obtained passing test reports, had no actual knowledge of the problem, was increasing its safety vigilance at the time and voluntarily turned itself in to the CPSC. The Target settlement agreement (signed by the CPSC) deemed Target’s QC procedures “reasonable” and noted that it had “satisfied the standard of care” – yet Target was whacked with a huge penalty. We in the business community judge the CPSC by its actions, not its talk. These recent CPSC actions suggest that there is much to fear nowadays, notwithstanding Ms. Tenenbaum’s assurances to the contrary.

Second, the CPSC is still sitting on literally thousands of unanswered questions from the business community but is making no attempt to slow the CPSIA implementation process until these issues can be addressed. Some of these questions are more than a year old. Is that fair? Should this inactivity inspire confidence in a business community subject to the prospect of Target-style penalties? Finally, it is notable that the CPSIA phthalates testing standard has not been completed, exactly zero labs have been certified to perform phthalate tests since the August 14, 2008 passage of the CPSIA and the long-awaited component testing rule (noted as an urgent need by then-Acting Chairman Nancy Nord on January 30) is still unpublished even in draft form. Is this the right environment for a “trust me” message?

Chairman Tenenbaum's message of vigorous but “friendly” enforcement may make a good sound bite, but the Chairman has yet to show any desire to make the agency anything more than Congress' police force. The agency previously played a critical role in setting safety priorities, assessing risks and interpreting the law. This discretion was removed by CPSIA. The Chairman can show she is a leader by providing an honest assessment to Congress of the problems with CPSIA and mapping out the necessary changes. Ironically, none of this is about safety – it’s about a law that just doesn’t work. The torturous process of implementation of this law is causing corporate casualties every day. These disasters can only be avoided by doing the hard work now. An accountable Chairman Tenenbaum will be an effective Chairman Tenenbaum.

Rick Woldenberg is chairman of Learning Resources Inc. and the Alliance for Children’s Product Safety.

CPSIA - My Ruling on Brass Bushings

The Learning Curve request for exemption for brass bushings on their toy cars is still pending at the CPSC. It is supposedly up for a vote this week. As I have noted in two prior blogposts, this decision will set an important precedent for a number of other products. If, as expected, the Commission votes down the LCI request, brass will be essentially banned in all children's products, except for the pretzel logic of the pen decision (previously derided in this space). [The logic in the pen decision has never reappeared in another CPSC decision, and therefore should not be used as precedent for ANY other situation under the CPSIA until it actually reappears as part of CPSC common law. The pen decision was simply a gift to the writing implement industry, such as a convoluted and fantastic legal decision can be a gift.]

Among the anticipated victims of the LCI decision (to recap):

• Toys
• Connectors of all kinds
• Brass zippers, grommets and other apparel and footwear components and accessories
• Brass instruments (rentals to schools, certainly), musical bells and certain strings used in string instruments
• Children's jewelry

It is worth noting, amateur scientists in Congress, that brass has germicidal properties which is one reason why brass is used in doorknobs (icky germs!). Might actually be useful in some children's products for this reason . . . .

The presence of brass in daily life is an immutable fact. If the CPSC bans brass in children's products because of the idiotic CPSIA, NOTHING will eliminate the following uses of brass in the daily life of children:

• House keys (good for sucking)
• Doorknobs and locks (touching and licking?)
• Plumbing fixtures and drinking fountains (touching and sucking)
• Pipes to convey potable water (assuming those pipes aren't made of pure lead)
• Components in cell phones (definitely good for licking)
• Clocks, antiques, artwork (touching)
• Railings (licking)
• Jewelry (sucking)
• Guns and ammunition (no comment)
• Tools (you can poke out an eye with a tool!)
• Etc. etc. etc.

This does not even address the widespread presence of lead in, among other things, our food system, our potable water and our air. There are federal safety standards for allowable lead content in each category. Children are known to consume food, water and air throughout their daily lives without interruption. The obliviousness of the CPSIA in setting such stiff standards for bio-unavailable lead-in-substrate in children's products in the context of these other lead instances is shameful - and the source of the current issues with brass.

The CPSC Staff has determined that the CPSIA does not allow an exemption for brass bushings. In the understatement of the year, the staff concluded "that the estimated exposure to lead from children's contact with the [LCI] die-cast toys would have little impact on the blood lead level." Staff states clearly that they consider brass bushings safe and that the lead transmission from brass bushings is inconsequential and certainly not rising to the level of a hazardous substance. Unfortunately, the Commission has thus far shown no interest in taking bold stands and rejecting the legitimate legal (but nonsensical) conclusions of the CPSC Staff under the CPSIA. Common sense be damned.

In a perfect world (what a joke), the Commission's decision in this case would hold that although LCI brass bushings are caught up in the limits of the CPSIA, they present NO substantial hazard to children, and therefore using their seldom-used discretion, the Commission grants an exemption for brass bushings in children's products conditionally. The decision would explicitly state that this decision should be taken as precedent for brass in all children's products (to cut down on repetitive exemption requests). The decision would be dependent on TWO CONDITIONS, namely that: (a) the particular use of brass in children's products is not known or held by CPSC Staff to present a substantial hazard to children under the FHSA, and (b) the exemption will be lifted when Congress acts to ban brass from everyday life and takes concrete steps to retrofit America for a brass-free future, replacing all brass doorknobs, artwork, cell phones, keys and locks, plumbing fixtures and water pipes (including, what the heck, lead pipes, too) and so on. For so long as brass remains part of children's daily life in their home and school environments, the CPSC will not act to restrict brass in children's products.

The Commission, using common sense not previously known in the CPSIA era, would note that banning brass bushings would be utterly ineffective to change the net exposure of children to lead in their lives but would wreak terrible losses upon the marketplace. Senseless economic destruction is un-American and lacks a social conscience since the losses will be spread ratably throughout society among suppliers, sellers and consumers of all things brass. Finally, the Commission would note that unless and until its decisions to restrict children's products materially impact safety, the Commission will not keep safe products or components off the market for technical violations of the CPSIA. Brass bushings, in my fantasy, would be granted an exemption to the awful CPSIA.

This idle fantasy can come true if the Commission summons up the courage to act sensibly and to stop being complicit in the shoddy legislative work of Congress. As an independent agency of the U.S. government, NOT a subsidiary of the legislative branch or an organ of the House Energy and Commerce Committee, the CPSC has the authority to make up its own mind and to set rational policy. It's time that the Commission draw a line for one and all to see. Especially Mr. Waxman.

CPSIA - Brace for It, Things Are About to Get WORSE

CPSIA Testing Costs . . .
Tracking Labels . . .
Retroactivity . . .
Civil Penalties . . .
Criminal Penalties . . .
Phthalates ban . . .
State AG enforcement . . .
Market Chaos . . .

It's bad, bad, bad right now. Could it REALLY get worse?

Consider Section 102(d)(2)(B) of the CPSIA, the latest horror story to smack you in the kisser:

"(d) ADDITIONAL REGULATIONS FOR THIRD PARTY TESTING . . . (2) COMPLIANCE; CONTINUING TESTING.—Not later than 15 months after the date of enactment of the Consumer Product Safety Improvement Act of 2008, the Commission shall by regulation . . . (B) establish protocols and standards— (i) for ensuring that a children’s product tested for compliance with an applicable children’s product safety rule is subject to testing periodically and when there has been a material change in the product’s design or manufacturing process, including the sourcing of component parts; (ii) for the testing of random samples to ensure continued compliance . . . ."

Nice and obscure, buried deep in the CPSIA. Never heard of it? Ayyy! Haven't I told you that you must ALWAYS read the fine print???

This rulemaking, which has been giving CPSC Bar attorneys sleepless nights but has otherwise escaped the attention of the business community, is due in about seven weeks (November 14 deadline). It has the potential to be the final nail in our coffin, guys. Right now, there are no rules on frequency of safety testing. We are free to negotiate with our customers or establish our own testing plan. This has worked rather well for many, many years - after all, less than 0.01% of all children's products are EVER recalled. But no longer. The CPSC is going to tell us how to assure safety and quality now. The premise is that we are incompetent to do so without government involvement. In our company's case, the 130 pieces we recalled in 25 years (one incident) out of perhaps a billion pieces sold is no proof that we know what we are doing, apparently. Thank heavens we will finally have someone qualified to oversee our processes!

The speculation is that the CPSC is going to specify testing every X pieces or Y lots, or at least annually. In addition, the requirement to have random testing suggests that we cannot be allowed to supply testing samples directly. The "idea", as simple-minded and insulting as it may be, is that manufacturers might somehow pull the SWITCHEROO after a test report is issued. After all, we are SO EVIL! The CPSC does, actually, worry about the "switcheroo". They have mentioned it repeatedly as one of the impediments to the long-promised component testing rule that is aging like fine wine somewhere. NEVER has anyone pointed to a SINGLE recall that involved a "switcheroo" to my knowledge, but whatever - laws don't need any basis in reality anymore. Hence the CPSIA.

Math Interlude Begins Here . . . .

I have submitted information to Congress on testing for one of our telescopes. We recently obtained a new quote on testing - it now costs about $11,500 all-in (including the 23-24 samples). Our annual revenue for this item before the econony crashed was about $30,000 per annum. Assuming gross margins of 33%, typical for the toy industry (and easy for illustration purposes), our annual gross profit (not NET profit) would be $10,000. The cost to test this item is MORE than our annual GROSS PROFIT. This means that the telescope dies - even IF we can set our own reasonable testing program. If testing on this item is conducted annually, our COMPANY dies, too.

Let's look at it another way. Say your testing cost (including samples and so on) is $3,000 for a particular product. How much profit do you require to make it worthwhile to sell that item? If you need a gross profit 33% to make 5% on the bottom line, presumably you cannot afford an annual testing cost of even 5% of the total revenue of the item. If you accept breakeven as the tipping point for this illustration, then the math is also simple: $3,000/5%, or $60,000 in annual revenue. Ideally, you would want more than that so you aren't just "trading dollars". You would be marginally profitable at $80,000 in annual revenue for this ONE item. In the specialty market, a product producing $80,000 per annum is pretty darned good. The profit you would earn on this $80,000 item would be 5% net profit or $4,000 less the testing cost of $3,000, or a grand total of $1,000. Sell $80,000 in telescopes, make a thousand bucks. Nifty, that must be how Bill Gates got so rich.

Remember, this also means that the prospective revenue hurdle for a comparable NEW item is ALSO $80,000 per annum revenue. AND, in the case of a new telescope, you would have to front $11,500 before you get revenue dollar "one". Hmmm, that might cut your product development pipeline down a LOT.

In fact, this annual testing requirement will send many companies scurrying into other markets, such as the mass market or into other businesses, in any event far, far away from the CPSC and this law. I do not see how the education market would survive. Honestly, virtually every manufacturer serving the NSSEA market (educational dealers) is a small company. Even the bigger small companies still do insufficient revenue on the vast majority of products to justify this expense. I know that this rule ALONE could many companies to shed at least two-thirds of their product line. That's too horrible to contemplate.

Math Interlude Ends Here . . . .

It is another irony of this rule that by formalizing the requirement to retest when you change components, you actually provide a negative incentive to become more efficient or more safe. There is no incentive to change factories if you save less than the new testing costs. It will take our factories about two seconds to realize that this gives them dominion over their customers. American businesses will be tied to their sources irretrievably even as costs rise, and will thus be at a cost disadvantage outside the U.S. to more efficient European and other competitors. In addition, the law punishes companies for improving their products by imposing a testing penalty on any change. Thus, your incentive to change a product to, for example, make it better or safer is greatly reduced - you will pay (literally) for your good deed. As these innovations are often voluntary, it will be impossible for the government to know how you might have improved your products had they not meddled in your business. You save money, and your products are more expensive, uncompetitive and less safe. What a great way to run an economy!

Given everything that has happened to date, we shouldn't expect a Knight in Shining Armor to emerge from the CPSC to save us. After the double-speaking phthalates standard and tracking labels guidance, plus the truly stupefying rules on exempt materials, I find it hard to believe they will do the right thing here. The lip service by Commissioners about recognizing the needs and legitimate concerns of the business community has been just that - lip service.

How could disaster be averted? It would take unprecedented bravery and character by Inez Tenenbaum. Democratic leadership in Congress has thumbed its nose at the children's product industry. It would be overly kind to call their attitude a calculated indifference to our fate. That leaves us in the hands of Chairman Tenenbaum. Thusfar, Ms. Tenenbaum has chosen to kiss the pinkie rings of Mr. Waxman and Mr. Rush and with Southern charm, coo about the "good statute". She has done nothing to stand up for the moral, law-abiding, crucial businesses serving the children's market despite overwhelming documentation of the senseless damage being done by the terrible CPSIA.

Ms. Tenenbaum needs to have a change of heart. If she takes the route of least resistance and issues guidance requiring frequent testing and other unnecessary but expensive similar requirements, it is probably game over for everybody. On the other hand, she could rise to the call of history and tell Mr. Waxman to drop his pretense that this law is somehow workable. Frankly, there is no data available to justify Section 102(d)(2)(B). The assertion that the government must, for the first time in history, tell us how often to test to assure quality has no basis in fact. It's just a Congressional staffer's (or consumer group's) lunkheaded idea.

Ms. Tenenbaum, it's your call. You can save us and be a hero, or you can send us down the river and be remembered as the one who committed this mortal sin. You won't be afforded the opportunity to blame this one on Congress - you can act, and you know it.

CPSIA - Wanted, a Demonstration of CHARACTER

I hear from readers of this Blog practically every day. It is obvious that I am not alone in my strong opposition to the CPSIA. In fact, the pain seems to be widespread, across many industries, forms of business and channels of distribution, and feelings of disenfranchisement and loss remain intense. I get the sense that you recognize that Congress is deaf to your concerns, having made up "its" mind a long time ago. [In fact, this is not entirely true since many members of Congress are on record with strong reservations about the law. It's the Democratic leadership who closed their minds and closed their doors to us.]

Because Congressional leaders (Dems) won't talk to us and aren't motivated to do anything to fix the mess they made, much of the angst now focuses on the CPSC. I have said many times that I don't envy their job. The CPSC is paid to enforce this stupid law, and inevitably, enforcing a stupid law . . . well, it doesn't make you look good. Much frustration and anger has been directed at the agency for doing their unpleasant job, a burden replete with inflexible and uneconomic regulatory limitations, unreasonable workloads and unrealistic deadlines. In addition, the agency is acting in a disciplined way, writing rules to implement a stupid law in the stupid way Congress wanted it implemented. Of course the new CPSC rules look stupid - given where they came from. This could be anticipated - as a Federal agency, the CPSC must simply fill in the holes in the law, not re-write it. [There is Supreme Court law on this topic (Wayman v. Southard (1825): "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.").]

If Congress won't act and the CPSC can't help us, either . . . what do we still want under these circumstances?

I have an answer: we want a demonstration of character by the CPSC. I know those are strong words but it's time to stop beating around the bush. Congress is deaf - face it, if Mr. Waxman gave a damn about you and me, he might have found a couple hours to call a hearing in the last year. He has no intention to act, no matter the pain or waste we have proven (as our dear friend in Senator Durbin's office acknowledged last May). That means that unless we want to wait for someone to save us that isn't going to come, we need the CPSC to rise to the occasion. Notwithstanding the legal analysis above (which I happen to believe is correct), we need MORE from the CPSC and its leadership. They know as well as we do how misguided this law is. They know about our pointless losses and the incredible, wrenching disruptions in our businesses. They also know the law is causing MASSIVE misallocation of their limited resources away from real issues of safety and toward nonsense (like the agency's contemptible Resale Roundup program which has a zero percent chance of preventing an injury or saving a life, or the senseless devotion of hundreds or thousands of man-hours and millions of dollars to the prosecution of safety investigations of ballpoint pens, rhinestones and bikes and ATVs for their lead content). They know this law is ruining their agency and the markets they are supposed to patrol.

The agency's inability or unwillingness to find a way to steer this law to sanity is not as compelled as they might want you to believe. To argue such is nothing more than a cop out. Any lawyer worth his salt can read a law to mean anything he wants. In fact, the agency's tilt toward Congress might be remarkably shortsighted. Is it really in anyone's best interest, including the CPSC's, to play footsie with Congress on such a defective law? The outcome seems pre-ordained to me. Of course, the route of least resistance may be to try to convince America that policies like sending inspectors to garage sales are necessary to "keep kids safe" but how long will that illusion last, and when the mania finally passes, who will still respect the CPSC? They are hitching their wagon to legal lunacy that they themselves recognize clearly.

The solution is character. The CPSC can resist. Notably, they have been given permission by 28 Senators to use their "common sense". Perhaps a little more creativity in legislative construction is needed. Perhaps a little more skepticism about the perfection of Congress' legislative process or Congress' knowledge of safety issues is merited. There once was a day when the CPSC's principal concern was doing the "right" thing (as opposed to trying to please Congress), and the mission of safety was their guiding light. Unfortunately, today's mission seems to be maximizing bureaucracy, not safety. Guys, you are letting us down. We have no one left to turn to but you. Trust, faith and hope in the agency has not been entirely destroyed, despite low points like the pen decision, the ATV decision and Commissioner Moore's recommendation to sequester library books. I, for one, want to continue to believe that I can trust the CPSC, as I have for almost 20 years. I will admit my faith is wavering.

CPSC leadership can strike a different chord, can write different rules and can take more personal risk in pressing Congress for a restoration of rationality to our national standards of safety. This is an issue of character - I think it's time for action.